John McGinnis and Michael Rappaport devote two chapters of their excellent book to the relationship between constitutional originalism and inconsistent non-originalist precedent. They argue that under the original meaning of the Constitution the term judicial power in Article III “include[s] a minimal concept of precedent, which requires that some weight be given [by judges] to a series of decisions.” They further argue that the Constitution “treats precedent rules as a matter of common law that is revisable by congressional statute,” so that (as I understand it) (1) the courts could adopt much stronger (even absolutist) precedent rules on their own, and (2) Congress could, pursuant to the Necessary and Proper Clause, displace whatever rules the court adopted with its own (strong or weak) precedent rules. (Applying their normative, welfare-consequentialist defense of originalism, they then propose “two specific rules for when precedent should be followed: when following precedent is necessary to avoid enormous costs and when precedent has been entrenched.”)

I have some questions/comments/criticisms:

1. From their historical overview of the understanding of precedent at the time the Constitution was adopted, McGinnis and Rappaport conclude that the “dominant approach to precedent was not limited to the common law but was also applied to decisions construing written laws.” But even if we take as given that some concept of precedent applied to judicial decisions that interpret statutes, I don’t see how it necessarily follows that a concept of precedent would apply to judicial decisions that interpret the Constitution. Where judicial decisions misinterpret statutes, the legislature retains the ultimate authority to revise the statutes. It does not have that authority with respect to judicial decisions that misinterpret the Constitution.

2. In any event, the “minimal concept of precedent” that McGinnis and Rappaport derive from Article III is so weak that, as I understand it, it would never prevent the Supreme Court from overruling a wrong precedent. It seems quite remarkable, then, that McGinnis and Rappaport would enable the courts or Congress to adopt precedent rules that would prevent such an overruling.

McGinnis and Rappaport anticipate the objection that “permitting judges and legislatures to shape precedent rules delegates too much power to ordinary officials to change the Constitution.” Their answer (if I’m understanding it correctly) is that the meaning of the Constitution isn’t in fact being changed but that the Constitution is instead “authorizing decisions that depart from its original meaning.” They maintain that there is “nothing strange” about such a result, and they offer in support the proposition that “the Constitution clearly requires the executive to enforce court judgments in specific cases, even if it believes these judgments have misconstrued the Constitution.” But I don’t believe that the Constitution requires any such thing, and their result certainly strikes me as strange.

3. McGinnis and Rappaport seem driven to their position by their perception that “if originalism cannot be reconciled with [non-originalist] precedent, it becomes a theory of limited appeal and usefulness,” as originalism would “require ignoring [non-originalist] precedent even when doing so has enormous costs.” (As examples, McGinnis and Rappaport note the possibility that the Supreme Court decisions allowing Social Security and paper money might have been wrongly decided.)

The challenge of applying originalism in an environment replete with non-originalist precedents is indeed a daunting one. Justice Scalia may well be right when he argues in A Matter of Interpretation:

Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.… Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.

I wonder, though, if there isn’t a better way to reconcile originalism and precedent. Several chapters earlier, McGinnis and Rappaport reject the conventional position that the Constitution’s amendment provisions are too strict and instead develop the interesting counterargument that non-originalism has “prevent[ed] the constitutional amendment process from operating effectively.” (Their argument, concisely put, is that non-originalist rulings that “correct” perceived defects in the Constitution take the steam out of efforts to amend the Constitution to the same end and redirect future political efforts away from the amendment process and toward Supreme Court nominations.)

I’d submit that preserving non-originalist precedents likewise prevents the amendment process from operating effectively. In order to energize the amendment process, why not instead recommend that the Court freely overturn non-originalist precedents and, where necessary to prevent disruption, stay the effect of its ruling for X years until the amendment process has been able to run its course? (Any amendment could, of course, be fully retroactive in effect.)